Marches, parades and static demonstrations: guidance

3: Key legislation

3.1 Human Rights legislation

The overarching legal framework for marches, parades and static demonstrations is that of Human Rights, in particular the European Convention on Human Rights (ECHR) and its incorporation into Scots law through the Human Rights Act 1998.

Article 11 of the ECHR is a key factor in considering marches, parades and static demonstrations. Enshrining freedom of assembly and association, it states that:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of [their] interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

The rights of freedom and assembly are not unrestricted rights, and conditions or prohibitions to ‘free assembly’ may be imposed to:

• protect national security or public safety
• prevent disorder or crime
• protect health or morals
• protect the rights and freedom of others

Any restriction placed on the right to free assembly must also be proportionate to remain compatible with Article 11.

Under section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with an ECHR right. Therefore, local authorities have to ensure that their decision making around marches and parades is compliant with Article 11 and the other articles of the ECHR.

Freedom of peaceful assembly is not an unlimited right: it does not translate into being able to march anywhere at any time. The human rights of other groups – including the communities that a march, parade or static demonstration occurs in – must also be taken into account. Here it may be necessary for public authorities to strike a careful balance between freedom of peaceful assembly and the rights of others by placing conditions on the manner in which the assembly proceeds. For example, it may be reasonable to distinguish between a restriction on ECHR rights to assemble and express opinion on one hand, and, on the other hand, a restriction on the manner in which those rights are exercised.

This is particularly relevant where the specific timing or route of a march/parade may necessitate conditions on timings and route for the limited reasons further explored in Section 4.9: Prohibitions and special conditions. This may also be particularly relevant in the context of the regulation of traffic, where local authorities may consider it appropriate to suggest conditions where their aim is to facilitate the safe conduct of a demonstration.

It should be emphasised that Article 11 of the ECHR only applies to assemblies which are peaceful – it does not apply where participants are intent on violence or otherwise reject the foundations of a democratic society.

3.2 Marches and parades legislation

Sections 70 and 71 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 made amendments to the Civic Government (Scotland) Act 1982 which had previously provided the key legislative framework for marches and parades. Taken together, these acts provide a clear basis for policy on marches and parades.

Notifications: The organiser of a march/parade must formally notify the relevant local authority and Police Scotland of their intentions at least 28 days before the date of their march/parade. That notification should provide details of the proposed date, time and route, the number of people expected to participate, and the arrangements made for stewarding the march/parade. Wherever possible march organisers should submit their notifications as early as is possible for them to do so, as this will help to make room for the safe facilitation of their march/parade. This is particularly the case where the march/parade is likely to have a significant impact on traffic as the relevant authority may need to apply for a Temporary Traffic Regulation Order (TTRO). This is discussed further in Section 5 on Managing traffic.

Exemptions: the only standard exemption to the notification process applies to funeral processions organised by a funeral director acting in the ordinary course of their business. In exceptional circumstances a march/parade may be exempted by a specific order by the Scottish Parliament.

Dispensations: Section 62(4) of the Civic Government (Scotland) Act 1982 allows march/parade organisers to apply for a ‘waiver’ to the required 28 days’ notice. A local authority should only waive the 28-day notice period in exceptional circumstances, for example if there is clear evidence that the march/parade will need to be organised quickly in response to a recent decision or announcement (such as a decision to close a factory, the unexpected attendance of a political figure at a public event, or an unexpected announcement of redundancies). Police Scotland must be consulted before an order under this section of the 1982 Act is made.

Record of marches and parades: local authorities are required to compile a list of previous and upcoming marches and parades in their area, including those proposed but prohibited, and to make this list freely available.

Local authority duties: the local authority must consider the notification and inform the organiser as early as they can of any likely special conditions or prohibition on the holding of the march/parade. Any such conditions/prohibition should be made only after consultation with Police Scotland. The organiser should be formally notified before the parade is due to take place of whether any condition/prohibition is being imposed upon it and the reasons for these must be provided in writing.

Section 63(3) and 63(4) of the 1982 Act states that the council should do this ‘as early as possible … insofar as it is reasonably practicable for them to do so’ and must deliver their decision ‘at least 2 days before the date of the [procession]’. Best practice means that statutory minimum should be regarded as two business days, and that local authorities should strive in all cases to deliver their decision at least one week before the date of the march/parade.

Conditions/prohibitions: Section 63(8) of the 1982 Act sets out the considerations which the local authority can and should have regard to when deciding whether to prohibit the holding of a procession or impose conditions on it. These include:

1. The ‘likely effect’ of the holding of the procession on public safety, public order; damage to property; or disruption to the life of the community

‘Disruption to the life of the community’ is discussed further in Section 4:10.

Police Scotland have separate powers to give directions, in advance or ‘on the spot’, under Section 12(1) of the 1986 Act which notes that police may place conditions on a march/parade if the commander ‘reasonably believes that’:

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others …

Where a local authority is making a decision about whether to prohibit or impose conditions in relation to a proposed procession, that decision will be fact-specific and may require the local authority to obtain legal advice about the decision. However, decided case-law may provide some assistance. The Note by Sheriff S Reid Esq. in the Summary Application Under section 64 of the Civic Government (Scotland) Act 1982 at the instance of Apprentice Boys of Derry, Bridgeton (Pursuer) against Glasgow City Council(Defender) [2019] SC GLA 80 has useful commentary about the legislative framework, including Article 11 of the ECHR. There is also guidance by the Organisation for Security and Co-operation in Europe (OSCE) which has produced summaries on freedom of peaceful assembly under Guidelines on Freedom of Peaceful Assembly.

2. Where ‘containing the risks’ of the parade are likely to ‘place an excessive burden on the police’.

As mentioned at Section 2,1, the local authority must take account of whether a march/parade may place too much of a burden on the police, but it should be noted that this does not include the direct financial costs of policing the parade.

3. Where the organiser and/or ‘persons likely to take part’ in the notified parade had previously been involved in a march/parade in the council area which had breached a prohibition order or imposed conditions, or had impacted negatively in terms of public safety, public order; damage to property; disruption to the life of the community.

The issue of ‘disruption to the life of the community’ is discussed further in Section 4.10.

3.3 Static demonstrations legislation

Section 14 of the Public Order Act 1986 allows for restrictions on a static demonstration only where police can show that it was likely to result in ‘serious public disorder, serious damage to property or serious disruption to the life of the community’ and/or where the purpose of the demonstration was ‘the intimidation of others’. Restrictive conditions may only apply to the number of people who may take part in the demonstration, its location, and its maximum duration.

There is nothing in the Public Order Act 1986 that allows the prohibition of a static demonstration.

There is no obligation to give advance notice of a static demonstration under the Civic Government (Scotland) Act 1982.

3.4 Other legislation

Depending on the specific nature of, and plans for, the march or parade, further legislation may be applicable. This might include:

• Public Order Act 1936, which creates an offence of wearing uniforms signifying association with any banned organisations in a public place or at a public meeting.
• Public Order Act 1986, which relates to the powers of chief constables during or immediately before a march or parade (section 12) or a static public assembly (section 14). Section 12(1) provides for separate powers for police to give directions in advance or “on the spot” if the commander ‘reasonably believes that’ it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

if the purpose of the persons organising it is the intimidation of others.

• Terrorism Act 2000, relating to being members of, supporting, or fund-raising for an organisation forbidden by law - or wearing clothing/carrying or displaying articles that arouse reasonable suspicion that the person is a member of, supports, or is fund-raising for an organisation forbidden by law.

Depending on the specific plans for the march/parade, some consideration might need to be given to:

• Land Reform (Scotland) Act 2003 (for making orders to temporarily prevent people from having rights of access to land).
• Road Traffic Regulation Act 1984 as amended by the Road Traffic (Temporary Restrictions) Act 1991 and the Road Traffic Regulation (Special Events) Act 1994 which contains provision in relation to the making of temporary traffic regulation orders (TTROs), such as orders prohibiting the use of a specified length of road (see Section 4.13 of this guidance on managing traffic for further information on this issue).
• Road Traffic Act 1967 (the conditions which set out the powers of the police).
• Control of Pollution Act 1974 (for example, the use of loudspeakers).

The following laws may also be relevant, particularly if the march/parade is intended to begin or conclude with a public event with, for example, speeches or music.

• Health and Safety at Work Act 1974 (to see what measures your local authority need to take for events which may carry a risk to health and safety).
• Food Safety Act 1990 (where food is provided or sold at the event).
• Occupiers Liability (Scotland) Act 1960 (duty of care so that people do not suffer injury and so on).

Police Scotland have powers to restrict traffic and close roads. The local authority should bear this in mind when considering what arrangements might best suit the circumstances of the event and discuss this with Police Scotland. Relevant legislation might include:

• Road Traffic Regulation Act 1984 (section 67).
• Road Traffic Act 1988 (sections 35 and 163).
• Police and Fire Reform (Scotland) Act 2012 (section 20).

This is not a full or exhaustive list of legislation and there may be other laws which apply. Local authorities will need to consider each case on its merits and consult Police Scotland when appropriate.